Practical Considerations on Enforceability of Arbitratral Awards
Vichai AriyanuntakaChief Judge of the Central Labour
Court
Seeking Enforcement in Court
• Which Forum?• Court of Justice or Administrative Court• Court of Justice
– Intellectual Property and International Trade Court
– Civil Court
• Commission on Conflict of Jurisdictions• Different regime for ‘administrative
contracts’
Options available for respondent
• File a petition for setting aside (offensive strategy)– Time limit 90 days– Burden of proof on the debtor– Popular grounds – due process, composition of the panel, public
policy
• Wait for the creditor of the award to file an action for enforcement of the award (defensive strategy)– Time limit within 3 yrs.– Burden of proof on the debtor– Same grounds as above– Defensive strategy could prove expensive taking into account
the amount of ‘interests’ added
Who pays for the expenses?
• Each party to bear its own costs at arbitration/ or• Loser pays for the winner – arbitrator’s fee
(panel) , administrative fee of the arbitration institution, attorneys’ fee and expenses
• Court fee and expenses at trial• Court fee for enforcement of arbitral award – 1%
of the award but not exceeding 80,000 baht, loser will require to pay expenses including attorney’s fee for the winner but not more than 5% Max.
• In Thailand costs usually not a prohibiting factor
Enforcement in IP&IT Court
• Applicable Law and salient features– IP&IT Court Act and Rules of the IP&IT Court– Arbitration Act 2002– Quorum of three judges including one expert
associate judge– Only arbitration awards on the disputes over
IP&IT– Written statements, video conferencing,
consent out of translation– More expertise
Enforcement in the Civil Court
• Applicable law– Civil Procedural Code– Arbitration Act 2002– Appeal directly to the Supreme Court
• Grounds – contrary to public policy – a dissenting opinion at the lower court – appeal an order for interim measure
– A quorum of two judges
Enforcement in the Administrative court
• Administrative Court Act sec. 3 def. for ‘administrative contract’
• Def. illustrative not exhaustive ‘shall include…’ – at least one of the parties is a government body or acting on its behalf and the nature of the contracts is for public utilities, public services or concession contracts
• Administrative court judges --- not necessarily legal experts but experts on public administration, economics etc.
• Applicable law – public law, the notion of ‘public interest’• Appeal to the Supreme Administrative Court
Cabinet Resolutions
• 24 January 2547 (2004)– Preferred choice of dispute resolution in Concession
Contracts – Applicable law– Language
• 16 March 2547 (2004)– Exception to Resolution 24 January 2547
• 4 May 2547– Emphasis the applicability of 24 Jan 2547 Resolution
on concession contract alone
Miscellaneous Provisions
• Sec. 23 Arb. Act – while providing immunity to arbitrator for civil liabilities save in gross negligence and willful misconduct, does create criminal liability for malfeasance (both for arbitrator and the provider)
• Foreign arbitrator accepted for practice• Counsel – yes, if applicable law not Thai or the
enforcement of the award is outside Thailand• Although Thailand is not an ICSID member, it is
a MIGA member
Never to Forget Re-Negotiation
• Although enforcement via the court takes the form of leap-frog procedure i.e. bypassing the Court of Appeal, it could take years
• Interests on the award could mount to a formidable figure – not ‘politically correct’ for any government to ‘lose’
• Negotiation is always an option for the government
Questions & Answers
Thank you
Vichai Ariyanuntaka